The appellants appealed against the decisions of the Asylum and Immigration Tribunal (AIT) dismissing their appeals against the refusal of the Secretary of State for the Home Department to grant them asylum. The AIT had felt that they had not established a well-founded fear of persecution if returned to their home countries.

One of the appellants was an Iranian national who had practised homosexuality in Iran for several years before seeking asylum in the UK. The AIT decided that he could reasonably be expected to tolerate the position in Iran if he were returned there, since they felt that he would behave discreetly and, consequently, could conduct his homosexual activities in Iran without serious detriment to his private life. The other appellant was a citizen of Cameroon, who had had two homosexual relationships there. He had been discreet except on one occasion where he was caught kissing in public and subsequently attacked. However, as with the other appellant, the AIT held that he would also be discreet on return to Cameroon, and that there was no real risk of persecution.

The first appellant argued that a person had a right to the normal incidents of sexual identity, which included a right to associate and live openly with the partner of his choice, not having to lie continuously about a core aspect of his identity, and, when single, openly seeking out the partner of his choice. He argued that refugee status could not be avoided by requiring the threatened person to appease his persecutors. He further submitted that the determination of what was ‘reasonably tolerable’ should not be country-sensitive. The second appellant submitted that the AIT had failed to consider whether he would in fact be discreet on return, and whether, if he was not, he would be at risk of persecution.

However, their appeals were dismissed. The test for determining how a person will behave on being returned to their home country required examining ‘whether that will entail for him having to live a life which he cannot reasonably be expected to tolerate because to do so would entail suppression of many aspects of his sexual identity.’ The Court of Appeal held that this test was an appropriate and workable test complying with the standard required by the Convention relating to the Status of Refugees 1951 (United Nations). The AIT in the case of the first appellant had understood the test and carefully considered the evidence in detail. Therefore, the CA did not find the tribunal’s findings to be perverse.

Secondly, it was accepted that the need to protect fundamental human rights transcended national boundaries, but that in assessing whether there had been a breach of such rights, a degree of respect for social norms and religious beliefs in other states was appropriate. Therefore, analysis of in-country evidence was necessary in deciding what an applicant could expect on return and what was reasonably tolerable there. A degree of discretion could be required in all sexual relationships. Whether a requirement to respect social standards violated a fundamental human right was a matter of judgment for the tribunal. Finally, in respect of the case of the second appellant, the CA held that AIT had been entitled to find that, in the circumstances, a single attack following a one-off incident did not establish a real risk of persecution in the future.